Copyright law is inextricably tied with notions of power and racialized White dominance – really need a history lesson?

Since its early beginnings, IP law, and particularly copyright law, had an intricate relationship with power. Benedict Atkinson and Brian Fitzgerald present this concurrence as the governance of information by ‘a hierarchy of authority' 602 that prevailed until the enactment of the first copyright statute, namely the Statute of Anne of 1710.603 Notwithstanding with these statements, it is asserted herein that the reciprocity of copyright and power was not limited to maintaining control over the exploitation of information. Neither this mutuality ceased with the codification of copyright as an authorial right by the aforementioned Statute. Per contra, it was institutionalized, along with the main structures of White dominance, in IP law, which echo, if not prevail to rule, the contemporary IP law domain.

Though the genesis and the maturation of the idea of 'IP' and 'copyright' pre-date the construction of race, ,604 the ideology and the structures of (inherently White) dominance that had been interwoven into the fabric of IP law in general, and copyright in particular, catalyzed the construction of racialized modes of creatorship and creativity within a paradigmatic (White and non-White) binary in the latter stages of the Western (European) history.

Therefore, this section explains the origins of copyright, not only as a socio-political and legal construct, but also as a legal practice emerged from the Western (European) economic, historical, political, and legal context. Aspiring to unfold the relationship of copyright with the (reinforcement of) power, the section outlines the chronicle of events until the adoption of the Statute of Anne of 1710, by considering the milestones in copyright history. Aligned with this purpose, the section identifies and explains four interrelated aspects of the interface between IP and power: Physical authority, ideological authority, political authority, and economic authority. Whereas the narrative herein centralizes the Kingdom of England to substantiate its arguments and to explain the aforementioned power structures built in copyright law, other jurisdictions are also mentioned, when necessary.

The construction of copyright can be traced back to the early fifteenth-century, though such a construct hardly resembles the modern perceptions of copyright but rather a copy-right. Indeed, it is not possible to speak of an economic and transferrable authorial legal right in the early 1400s, mainly for two intertwined reasons: First, at the time there was no technology available to produce authorial works in large quantity. Second, in the absence of such technology, authorial works were being reproduced manually by copyists. 606 Thus, the art of making manuscript copies was a time-consuming and costly process. 607 Given the impossibility of mass reproduction and distribution, authors were often relying on wealthy patrons' sponsorship for a living.608 Besides, every copied manuscript had an immediate material return; hence, there were hardly stocks of copies and no economic imperative for securing future commercial transactions. 609

This historical and literary backdrop of the early 1400s produced the first liaison of copy-right with power: Physical authority. In this respect, Alain Pottage and Brad Sherman explain that the Roman law's specificato principle was the main legal institution in medieval England which would help construe book-possessors' rights over authorial works.610 The dominium of the possessor was acknowledged to prevail over the composite parts of a corporeal object, unless such parts could be recovered without damaging the object. 611 Therefore, the possession of the physical copy of a literary work embodied also the perpetual right to reproduce its content, without being subjected to any restrictions. 612

Despite the limited number of archival materials on the origins of copy-right per se, there is an anecdote narrated by Edward S. Rogers that confirms this Roman law approach to the original manuscript and its (in a way) derivatives.613 Rogers cites an historical episode between Finnian and Saint Columba which concerns the latter discovering a psalter in the former's possession and copying it.614 Being informed about this incident, Finnian considers the Saint's act as theft; he claims that '[the copy] was as much his as the original'615 and requests the unauthorized copy of the psalter.616 The dispute ends up in a trial before King Dermott, who delivers the following judgement that solved the dispute: 'To every cow her calf, to every book its copy."

The physical authority aspect evident in this judgement, hence, the subjection of the trajectory of copies to the ownership of the physical copy of the original work lost their initial importance, due to one of the major achievements of the Century: The invention of the first moveable-type of printing press by Johannes W. Gutenberg in 1439.618 With the arrival of the printing technology, not only copy-right transposed to a sophisticated entity, but also the dynamics within the publishing sector undergone transformation. Facilitating the reproduction and mass production of literary works,619 the printing press decreased, on the one hand, authors' reliance on manual copyists, and the publication price, on the other. 620 Thus, it created a literary market, where books were more affordable, hence, accessible to a broader spectrum of readers. 621 In return, it also increased the potential economic gain of authors and printers, while introducing the risk of reproduction and distribution of unauthorized copies. 622 As highlighted by Ronan Deazley et al., along with these changes a new era began in the general copy-right history, which impacted each and every jurisdiction in the Western (European) hemisphere.

Yet, the most sensational outcome of this process, at least for the purposes of this dissertation, was the reproduction and dissemination of the Bible, which startled the Protestant Reformation in 1517.624 This incident presented a new aspect to the relationship between copy-right and power: Ideological authority.

Indeed, the advent of the printing press not only holds a milestone in the global copy-right history, but it also marks a turning-point (or, perhaps, a point-of-no-turn) in the relationship between the ruling-elite and the public at large, given the flow of the following events: The vernacular translations of the Bible, or the so-called Gutenberg Bible, was distributed to masses." This incident illuminates the intricacies of copy-right and power in two ways: First, the printing press and the Gutenberg Bible broke the monopoly of the Roman Catholic Church on the production, interpretation, and dissemination of the Biblical information.626 While enabling the publication and spread of the ideas dissenting from or confronting the practices of the Roman Catholic Church,627 it empowered the society at large, by exploiting the information long kept in the hands of the ruling-elite. 628 Second, given the wide-dissemination of the Gutenberg Bible, the content of the materials to be published gained great importance for the ruling-elite.629 Indeed, the printing technology made materials that are essential for the public to form an opinion quite accessible, whereas this comprised a ‘threat' to the ruling-elite's status quo, political power, and religious authority.630 Thus, they had the urge to introduce certain copy-right measures in order to control the dissemination of information as such.631 This outcome is particularly intriguing, due to resulting in the use of copy-right as a mechanism to control (or, to prevent) the dissemination of information632 (especially, of ‘dangerous ideas' such as Royalism, Protestantism, or anything that does not comport with the doctrine of the Roman Catholic Church, and the like), to censor the content to be published, and to manipulate the society.63

The British Crown imported the printing technology in 1477 and established the official King's Print in 1518.634 Given that the printing technology was introduced to the Kingdom of England by the King, the act of printing was considered a royal prerogative that is exclusive to the Crown. 635 Accordingly, and recalling King Dermott's judgment mentioned above, any printed material (which were mainly comprised of the translations of the Bible, psalters, prayer books, Church calendars, and laws) belonged to the King. 636 Yet, the arrival of the printing technology in England, especially in the aftermath of the Reformist movements, not only entrenched the physical and ideological aspects of copy-right's relation to power, but it also introduced two other dimensions to this correspondence: Political and economic authority.

The political authority focalizes the Crown's endeavors to control the content of prospective publications before the printing and exploitation processes. In this context, the inaugural pre- publication censorship scheme was secured by the Crown by the Proclamation Prohibiting Unlicensed Printing of Scripture of 1538637 (hereafter 'the Henrician Proclamation').638 The Henrician Proclamation was issued to prevent the spread of the Protestant Reformation's impact in Britain.639 It aspired to protect the Catholic theology and to prevent the dissemination of the Bible's English translation. 640 To achieve this end, it prohibited the printing and publication of the Divine scripture without prior view and examination of the King, the Privy Council, or an assigned bishop.641 On that note, it shall be crystallized that the Henrician Proclamation constituted only a prelude to the pre-publication censorship schemes.642 Indeed, this Proclamation was followed by many others varying in objectives and scopes."

As to the economic authority, it centralizes the King's exclusive authority to bestow royal grants upon third parties. Indeed, the King could entitle certain people with the privilege to exercise the art of printing.644 This practice is referred to as 'privilege' herein since neither the grant nor the renewal of such opportunity were bound to any statutory principle or objective criteria. 645 Per contra, these printings privileges were granted on an ad hoc basis and arbitrarily.646 Whereas these ad hoc privileges were efficient at the beginning, the increasing dependency on the printing press not only resulted in the increase in the number of printing presses, but it also transformed printing into a highly competitive business.647 This was followed by tradesmen's demand for securing their economic returns from printing by having a monopoly in the marketplace. 648 Such demands to suppress competition in the book trade paved the way to the incorporation of the so-called Stationers' Company649 in 1557 by a royal decree, entitled the Royal Charter of the Company of Stationers 650 (hereafter 'the Charter'). 651 The Charter not only provided a corporate legal status to the Stationers' Company, but it also entitled the Company and its members with exclusive control over the printing enterprise in England, 652 which Robert William Cornish articulates as the establishment of 'an entrepreneurial cartel.'

The incorporation of the Stationers' Company was justified by the goals of regulating the printing enterprise, as well as attaining and maintaining the uniformity and order in the commerce.' 654 Nevertheless, the Stationer's Company was more than a mechanism for precision in the commercial sphere. It was operating as a mechanism to police and enforce the publishers' compliance with the licensing laws, in exchange for a monopoly over the printing business." This was aimed at enhancing the Crown's control over the dissemination of information to the public at large. The preamble of the Charter clarified that the information deemed to fit in certain categories were prohibited to be published, and these categories were articulated as follows:

'(...) certain seditious and heretical books, rhymes and treatises are daily published and printed by divers scandalous, malicious, schismatical and heretical persons, not only moving our subjects and lieges to sedition and disobedience against (...) our crown and dignity, but also to renew and to move (...) heresies against the faith and sound doctrine of Holy Mother Church (...). '656

Therefore, the Stationers' Company was entitled to search for any published or to be published material in any public or private premises within England (and its dominions), as well as to seize, hold, or even burn any such material, if they were deemed to be contrary to the laws or other regulations. 657

Whereas the Charter, as a self-regulatory text of the Company, was centered around economic interests and concentrated on the regulation of the book trade, the Star Chamber Decree of 1566658 equipped the Company with further authority – principally, due to the Crown's growing interest in controlling the press and the dissemination of information at its source. 659 Due to this, Deazley refers to the Decree of 1566 as the first explicit link between censorship and copy-right, hence, the first formal representation of the convergence of ‘the proprietary interests of the stationers and the censorial impulses of the [M]onarch and the government.'660 Furthermore, this Decree extended the scope of prohibited publications from religious texts to any book that was contrary to the laws, ordinances, and the letters patent."

The Stationers' Company and its operation twisted the existing power structures, on many different levels and in a number of intertwined ways: First, the Decree restricted the operation of printing presses to the members of the Stationer's Company; thus, an exclusionary group of printers were formed. 662 Second, the Stationer's Company hindered the competition among publishers, or consolidated the existing privileges of the publishers, by introducing a book-keeping system." 663 The Company's registry became a record for the established copy-rights and rightsowners.664 Although this practice was born out as a custom in the printing business, it gained a compulsory character with the Star Chamber Decree of 1637,665 which was later enshrined in a by-law of the guild.666 Third, the Stationer's Company and its registry, once and for all, consolidated the physical aspect of the copyright and power relationship. While advancing the status quo of the business enterprises, the Company's operations deprived the authors, who do not possess a printing press, from their control over their intellectual creations, if they had left any." Finally, the existence of the Company and its registry entrenched the Crown's absolute power of not only to controlling the copying process, but also controlling the content to be published.668 Thus, the copy-right system has become, in Caterina Sganga's words, ‘a cheap tool to control the press’ 669 in the hands of the ruling-elite, until the early eighteenth-century.

That said, the State- and Church-imposed pre-publication censorship schemes ceased with the passing of the Statute of Anne of 1710.670 The Statute is often celebrated in the IP circles due to replacing the printer- and publisher-oriented copy-right system with an author-oriented one." Indeed, the Statute considered the copy-right practices detrimental to authors and their heirs, as well as disincentivizing for authors to pursue contributing to the cultural life. 672 Hence, it vested a quasi-right to property in authors over their new works, limited to a fourteen-year term and could be renewed for another fourteen years, if the author was still alive. 673 Additionally, it recognized a single twenty-one-year term of legal protection for the publications already in print. 674

Even though the Statute of Anne of 1710 is praised as the beginning of an author-centered (or, modern) copyright system, Peter Prescott points out to a less spoken reason for this shift: "[E]xport[ation of] copyright control to a region of Great Britain where the Stationers' Company's writ did not run. .675 Prescott pinpoints the Kingdom of Scotland, as the Kingdoms of England and Scotland united in 1707 and formed Great Britain.676 At the time being, there were no complex copyright systems in Scotland compared to that of England; still, there was a remarkable book trade ruled by Edinburgh and Glasgow publishers. 677 Given that the Scottish publishing enterprise was out of the reach of the London-based Stationer's Company, Prescott argues that following the Act of Union of 1707,678 London publishers and booksellers may have feared parallel imports to Scotland. 679

In fact, a broader historical analysis of the expansion of British copyright laws to territories across the borders of the Great Britain is explained in the following section. Prior to that and as a closing remark to this section, it is worth to briefly summarize that copyright emerged as a censorship mechanism from the Western (European) reality and constituted a tool paramount to reinforcing the interests of the ruling-elite, including those of the Monarch, the Roman Catholic Church, and the ones holding the capital. Based on this, it is concluded herein that copy-right was not intended to comprise an aesthetics-free system. Per contra, it was an indicator for ‘approved' content and 'worth-to-be' exploited information.

Even though the arbitrary or strategic use of the copy-right tool was transformed by the passing of the Statute of Anne of 1710; it is hard to say the same for the ideologically-, politically-, and economically-charged power structures ingrained in copy-right practices and copyright law. These aspects may have also transformed, though remained attached to the core of copyright law and carried along with the extension of British copyright laws to its colonial territories and beyond.